United States District Court, D. Massachusetts
H. Hennessy UNITED STATES MAGISTRATE JUDGE
case is before the Court on Defendants' motion to dismiss
for lack of jurisdiction and Plaintiff's motions for
judgment on the pleadings and for a case management
conference. (Docket ## 18, 22, 24). The parties have
consented to my jurisdiction. (Docket # 21).
the allegations in the complaint do not clearly set out any
particular cause of action, Hamel's claims appear to
arise from the rejection of his application for employment
with the Department of the Army. (Docket # 1). In his
complaint, Hamel lays out a timeline of events as follows.
(Id.). Hamel alleges that he is the founder and
president of “American Voice for freedom [sic], a
libertarian 501(c)(4), ” that he is a resident of
Philadelphia, Pennsylvania, and that he is or was an employee
of a Federal Protective Service contractor. (Id. at
¶¶ 1, 2). Hamel reports that he applied for vacancy
identification no. 1897205 with the United States Department
of the Army (“DOA”) on January 23, 2017.
(Id. at ¶ 3). According to a posting by DOA,
the position was for a security guard at Fort Devens Army
Installation. (See docket # 19-1 at pp. 1-2). The
job paid up to $45, 995. (Id.). The job was subject
to a number of conditions which an applicant must meet
including “background checks and security clearance,
” proficiency with assigned firearms, passage of
medical tests, and possession of a valid driver's
license. (Id. at pp.3-6).
24, 2017, Hamel contends that he filed a complaint against
his employer with the Department of Homeland Security, Office
of the Inspector General (“Whistleblower
Complaint”). (Id. at ¶ 4.).
states that on July 25, 2017 he was rated as qualified for
the position with DOA and his application was referred for
consideration. (Id. at ¶ 5). Hamel claims that
he was tentatively selected for the DOA position on August 7,
2017, and that he accepted. (Id. at ¶ 7). On
August 11, 2017, Hamel submitted copies to Human Resources at
the Civilian Personnel Advisory Center of his Pennsylvania
driver's license, U.S. passport, Pennsylvania license to
carry firearms, and Pennsylvania Act 235 lethal weapons
training certification card. (Id. at ¶ 8).
Hamel contends that on October 31, 2017, Defendant Jennifer
Simmons, the Director of the Civilian Personnel Advisory
Center, withdrew the tentative job offer, explaining that it
was withdrawn because Hamel's driver's license was
suspended. (Id. at ¶ 9).
complaint, Hamel alleges that on November 7, 2017, the
Director of the Bureau of Driver Licensing at the
Pennsylvania Department of Transportation certified that
there were no violations or departmental actions respecting
his driver's license. (Id. at ¶ 10). On
November 8, 2017, Hamel informed a human resources specialist
at the Civilian Personnel Advisory Center that he would
provide her with a certified copy of his driving record to
prove that his license was not suspended. (Id. at
¶ 11). According to Hamel, the human resources
specialist stated that she would consult with the Director of
Emergency Services and get back to him. (Id.). Hamel
alleges that she did not call him back. (Id.). On
January 16, 2018, Hamel claims that the specialist informed
him that a U.S. Army Garrison Devens Police Sergeant
performed the license status query. (Id. at ¶
12). Hamel complains that because DOA has failed to initiate
his employment, he has suffered lost wages, lost
compensation, humiliation, emotional distress, and loss of
standing in his community. (Id. at ¶ 14).
filed his complaint on January 24, 2018 against Jennifer
Simmons; Mark Esper, the Secretary of the Army; and James
Mattis, Secretary of Defense. (Docket # 1). He filed for and
was granted leave to proceed in forma pauperis. (Docket ## 3,
5). Defendants jointly moved the court to enlarge the time to
file an answer on April 17, 2018. (Docket # 9). The Court
denied Defendants' motion to enlarge with leave to refile
upon compliance with Local Rule 7.1(a)(2) or citation to
authority excusing Defendants from compliance with Local Rule
7.1(a)(2). (Docket # 14). Defendants renewed their motion on
May 11, 2018, including a Local Rule 7.1 Certification.
(Docket # 15). The Court granted the motion that same day.
(Docket # 16). On May 15, 2018, Defendants moved the Court to
dismiss for lack of jurisdiction. (Docket #18). Hamel opposed
the motion to dismiss on May 21, 2018. (Docket # 20). On July
20, 2018, Hamel moved the Court to set a case management
conference. (Docket # 22). On September 4, 2018, Hamel filed
a motion for judgment on the pleadings. (Docket # 24).
Defendants filed an opposition to Hamel's motion for
judgment on the pleadings on September 18, 2018 and a reply
to Hamel's response to the motion to dismiss on September
27, 2018. (Docket ## 25, 26).
Motion to Dismiss
Standard of Review
concerns a court's authority to entertain and act upon a
controversy before it. Rosario v. United States, 538
F.Supp.2d 480, 486 (D. P.R. 2008). “Federal courts are
courts of limited jurisdiction, and therefore must be certain
that they have explicit authority to decide a case.”
Bonas v. Town of N. Smithfield, 265 F.3d 69, 73 (1st
Cir. 2001); see U.S. Const. Art. III. This Court has
“a responsibility to police the border of federal
jurisdiction.” Spielman v. Genzyme Corp., 251
F.3d 1, 4 (1st Cir. 2001). Because jurisdiction concerns a
court's power to hear a case, a challenge to
subject-matter jurisdiction may be raised at any time.
Hochendoner v. Genzyme Corp., 823 F.3d 724, 730 (1st
Cir. 2016); Rosario, 538 F.Supp.2d at 486;
Kontrick v. Ryan, 540 U.S. 443, 124 S.Ct. 906
(2004); United States v. Cotton, 535 U.S. 625, 122
S.Ct. 1781 (2002).
reviewing a Fed.R.Civ.P. 12(b)(1) motion to dismiss for lack
of subject-matter jurisdiction, the Court must
“construe the [c]omplaint liberally and treat all
well-pleaded facts as true, according the plaintiff the
benefit of all reasonable inferences.” Hajdusek v.
United States, 895 F.3d 146, 148, (1st Cir. 2018)
(citing Murphy v. United States, 45 F.3d 520, 522
(1st Cir. 1995)). Nonetheless, “the party invoking the
jurisdiction of a federal court carries the burden of proving
its existence.” Jonson v. FDIC, 877 F.3d 52,
56 (1st Cir. 2017) (citing Taber Partners, I v. Merit
Builders, Inc., 987 F.2d 57, 60 (1st Cir. 1993)).
Therefore, “an order granting a motion to dismiss at
the pleading stage is appropriate only when the facts
adumbrated in the plaintiff's complaint, taken at face
value, fail to bring the case within the court's
subject-matter jurisdiction.” Gordo-González
v. United States, 873 F.3d 32, 35 (1st Cir. 2017).
apparently read the complaint to assert a claim for
whistleblower protection against the DOA for rescinding
Hamel's offer of employment. Defendants argue that
because Hamel did not pursue his administrative remedies
before the Office of Special Counsel (“OSC”), the
Court does not have jurisdiction to hear any whistleblower
claims asserted in Hamel's complaint. The Court agrees
that in as much as Hamel is asserting protection as a
whistleblower, the Court does not have jurisdiction to hear
in Hamel's response to Defendant's motion to dismiss,
Hamel expressly disclaims that his complaint seeks any relief
under the Whistleblower Protection Act (“WPA”);
indeed, Section 1 of his opposition is entitled,
“Plaintiff did not file under the Whistleblower
Protection Act.” Rather, Hamel claims that his
complaint asserts counts of “malicious defamation of
character, interference with contractual relations, breach of
contract, and violation of due process.” (Docket # 20).
In relevant part, Hamel's complaint alleges that:
“[b]ecause of defendant's action, I have suffered